JUDGMENT

This application is praying this Court for an order for Judicial Review in the nature of prohibition and certiorari based on the grounds in the affidavit attached. Applicant's case as set out in the supporting affidavit sworn to by Togbe Adzi III, the Fiaga of Atikpui Traditional Area, is that he has received judgement from the Judicial Committee of the Asogli Traditional Council in a challenge of his stated by the family of the interested party. On the receipt of the judgement, an appeal was lodged against the judgement attached here as Exhibit “A”.

The appeal was then discontinued by the family of the interested party annexed as Exhibit “B”. Subsequent to this, Applicant instituted a mandamus proceedings against the Volta Regional House of Chiefs to have his name entered in the National Register of Chiefs - See Exhibit “C” attached. The Respondent in an action by the Applicant's before the High Court, the Interested Party argued that there was an appeal existing or pending at the Regional House of Chiefs against Applicant which was rejected by the High Court in Exhibit “D” which ordered the entry of Applicant's name in the Register of Chiefs within 30 days.

The Respondents have since constituted a panel of chiefs to hear the appeal. The reason being that there is an appeal pending in the Regional House of Chiefs against the Applicant. Applicant prays this Court to prohibit the panel from hearing the appeal which is no longer in existent. In his affidavit in opposition to the application the Interested party admitted the Applicant obtained a judgement at the Asogli Traditional Council against which an appeal was lodged. The interested party rather denies that the appeal was discontinued at the instanced of the family. It was discontinued by Joseph Obey against which the family had appealed. See annexure “ADB”.

During the pendency of the appeal, Togbe Kwame Adzroe V the 1st Plaintiff in the original action died with the 2nd Appellant as the only Appellant. It is their case that Togbe Kwame Adzroe was succeeded by Boniface Mensah as head of Adzroe family. It is the interested party's contention that Joseph Obey got himself substituted for Togbe Kwame Adzroe (deceased) and he went on to file a discontinuance of the appeal with liberty. On noticing the action by Joseph Obey the 2nd Defendant applied to set aside the order striking out the appeal and to relist same. The house relisted the notice of appeal and requested the parties per letter No. VRHC 147/Vol 6/58 of 29th May 2012 to submit to the Alternate Dispute Resolution which the Applicant refused or failed to attend. There was a delay in the motion for re-listment due to administrative hold ups.

It is Interested Party's case that “I have been advised and I verily believe same to be true that the ruling of the High Court attached to the application did not strike out the pending application for the re-listment of the appeal before the Regional House of Chiefs. I have been further advised by my lawyer and I verily believe same to be true that the High Court does not have jurisdiction to do so". Applicant has since refused to be present for hearing the appeal. In a further affidavit in opposition to the application, the Acting Registrar of the Regional House of Chiefs admits the service of the motion for Judicial Review in the form of Prohibition and Certiorari and opposed same. The Registrar admits the pendency of an appeal in this matter which was struck out on the 13th day of January, 2009. An application for relisting was filed at a time when Applicant filed an application for mandamus in the High Court for the registration of Togbe Adzi III. This application for relisting was filed and an order to that effect was issued – See Exhibit “B”.

It is the contention of the Registrar that the pronouncement of the High Court that the matter was not pending did not mean the application could not be determined by the Judicial Committee of the House. The instant application, it is his view that it is premature and must be dismissed.

In the statement of case filed by Counsel for Applicant, the Interested Party caused hearing notice to be served on Applicant for hearing of an appeal a few weeks after the High Court had ruled there was no appeal pending. Counsel submitted that the Supreme Court had laid down three grounds when considering an application for prohibition in the case – IN RE APPENTENG (Deceased) REPUBLIC VRS. HGIH COURT, ACCRA EX PARTE APPENTENG AND ANOTHER (2005/6) SCGLR. These are:

That prohibition is not meant to prevent a person or a Court from exercising general jurisdiction

That, is it rather to challenge an attempted exercise of the judicial function in specific jurisdictional situation is for excess or absence of jurisdiction or departure from rules of natural justice such as the existence of actual bias or strong likelihood of bias or interest and That an Applicant for prohibition or certiorari is not restricted by notion of locus standi.

In his further affidavit Mr. Agbakpe cited Ampiah JSC in the case IN RE KWABENG STOOL KAKARI AND ANOTHER VRS. ABABIO II AND OTHERS (2001/2) SCGLR 515 at 530-531 to claim that the ground of estoppel based on the judgement Exhibit “D”.

Also Counsel stated in the Court of Appeal case of FOLI VRS. AGYA ATTAH (1976) 1 GLR 194 that an unconditional withdrawal of an action without liberty to bring a fresh suit raised and estoppel ..........."

In his statement of case filed on behalf of the Respondent in this case Counsel submitted that had the Appellant conducted an official search at the Registry of the House he would have noticed that there was an appeal filed by the Interested Party which was later discontinued by one Joseph Obey with liberty to apply. Also that the interested party filed an application on 6/2/09 to relist the appeal which was granted on 10/3/16 (Exhibit “B”). Counsel submits therefore that there are no patent errors of law on the face of the records to warrant the supervisory powers of the High Court to interfere with the proceedings before the Respondent citing THE REPUBLIC VRS. COURT OF APPEAL, ACCRA EX PARTE TSATSU TSIKATA (2005/6) SCGLR 612 at 619. Counsel submits that the Respondent has not acted in excess of its jurisdiction or against the law.

On his part Counsel for the Interested Party Mr. S. M. K. Dzikunu submitted that the notice to discontinue the appeal was listed before a panel which recorded:

"Please take notice that the Plaintiffs/Applicants have today 13th day of January, 2009 wholely discontinue with the suit without liberty".

On same date a motion was before the panel which ordered:

“This appeal is hereby struck out as having been discontinued with liberty to RE APPLY”.

The 2nd Plaintiff/Appellant filed a motion before the Judicial Committee to set aside the order striking out the appeal and this appeal remained unheard.

Applicants then filed in 2015 an application for a writ of mandamus in the High Court which was heard and granted on 23/4/2015. Counsel recounted the Applicant's case set out in paragraph 7 to 11 of the application and concluded that paragraphs 8 and 9 of the affidavit were false. That at no time had the Interested Party relied on the existence of the appeal which was struck out but rather relied that there was a motion pending to restore the appeal which was struck out citing Wuaku J. A. in SASU VRS. AMUA SEKYI (1987/88) 2 GLR 221 at 230 and that the learned judge did not rule that there was no motion pending to restore the appeal for hearing. Counsel submits that any application pending seeking an order striking out the appeal was given without jurisdiction and is not binding on the Judicial Committee of the Volta Regional House of Chiefs. He states that jurisdiction to hear an appeal in a case affecting chieftancy is exclusively within the jurisdiction of the Judicial Committee. Part II of Chieftancy procedure Rules 1972 (C.I. 27) and Article 274(3)(c) of the 1992 Constitution cited. Also citing MOSI VRS. BAGYINA (1963) 1 GLR 337 at 347 and PENKRO VRS. KUMNIPAH II (1987/88) 1 GLR 558.

The application before the Court is for an order for certiorari and prohibition. This ruling would need to examine also when a matter is pending before a Court or adjudicating body.

Certiorari is an aspect of Judicial Review as provided in ORDER 55 of C.I. 47.

At common law certiorari has been considered in several cases including THE REPUBLIC VRS. HIGH COURT, ACCRA EX PARTE ATTORNEY GENERAL (DELTA FOODS LTD. INTERESTED

PARTY) (1999/2000) 1 SCGLR 255 where the Supreme Court summed up the essential aspects of the remedy as:

Jurisdictional error through want of jurisdiction Jurisdictional error through excess jurisdiction

Non jurisdictional error patent on the face of the record Breach of rules against natural justice and bias.

See Lord Atkin on the principles upon which certiorari would be granted in R VRS. ELECTRICITY COMMISSION EX PARTE JOINT COMMITTEE COMPANY (1924) 1 KB 171 CA quoted in REPUBLIC VRS. I.G.P. EX PARTE AGBUTTA, 1 GLR 400 at 408.

Abban J, as he then was, in REPUBLIC VRS. TEKPEBIAWE DIVISIONAL COUNCIL EX PARTE

NENE KORLE II (1972) 1 GLR 199 at 208 stated that certiorari as a common law remedy is primarily directed to control actions of inferior Courts or tribunals jurisdiction to bring them in line within their permissible limits in law. The body making the decision sought to be quashed must be under a duty to act judicially. See NAKUDDA ALI VRS. JAYARATE (1951) AC 66. Thus the order of certiorari is a means for ensuring that the machinery of public administration worked property and that justice was also done. The remedy is available to an Applicant who invites the Court to prevent some abuse of power REPUBLIC VRS. KORLE GONNO DISTRICT MAGISTRATE, EX PARTE AMPOMAH (1991) 1 GLR 353. See also Ampiah JSC in REPUBLIC VRS. ACCRA HIGH COURT EX PARTE APPIAH & ORS. (2010) SCGLR 389.

In RE GILMORE APPLICATIONS (1957) 1 ALLER 796 C.A Denning L J succinctly stated:

“The principle is that whenever a person is empowered by an enactment to exercise judicial or quasi judicial functions in any matters, his exercise of those matters is within the scope of certiorari and prohibition at common law and the enactment entrusting him with such functions should not be construed as having vested the supervisory jurisdiction of the High Court unless the enactment concerned clearly says so”.

Now prohibition would be issued as of right only where the defect of jurisdiction was clear. That where the defect was not clear and there was some doubt either in fact or in law whether or not the inferior tribunal was exceeding its jurisdiction or was acting without jurisdiction, the Court had discretion and might decline to interpose unless the request for prohibition was well founded – See REPUBLIC VRS. ANLO TRADITIONAL COUNCIL EX PARTE HOR II (1979) GLR 234 CA. Osei-Hwere I (as then was) held in the REPUBLIC VRS. CENTRAL REGIONAL MINISTER AND ANOR; EX PARTE A.C.P (1981) GLR 527 that the orders of certiorari, prohibition and mandamus would not issue to persons who took it upon themselves to exercise a jurisdiction without any colour of legal authority. The orders would issue where the body of persons had legal authority to determine questions affecting the right of subjects.

Thus prohibition is an order directed to an inferior Court or Tribunal forbidding it from continuing proceedings therein in excess of its jurisdiction or in contravention of the law of the land. That prohibition will not only be against excess or absence of jurisdiction, but also against the departure from the rules of natural justice – REPUBLIC VRS. KWAHU TRADITIONAL COUNCIL; EX PARTE NANA OSEI NKANSAH (1977) 2 GLR 4 97. The determinable issue in this matter is, whether upon the withdrawal or discontinuance of the appeal by Joseph Obey there was an application to relist the appeal and or whether there was an appeal.

In C. F. A. O. VRS. ZACCA the full bench of the Court of Appeal which replaced the Supreme Court (see the 1969 constitution) schedule 1 (Transitional Provisions Section 13) the Court held that “a cause is pending when you can take any proceeding on it and when there is not anything physically pending such as an appeal it is the right of appeal which can be said to be pending AWUONOR RENNER VRS. THENSU (1930) 1 WACA 77. Thus in the recent case of TSATSU TSIKATA VRS. THE REPUBLIC (2007/8) SCGLR 703 the Court referred to its rule sin RULE 22 C.I. 16 thus:

“22 An interlocutory judgement, decree or order from which there has not been an appeal shall not operate to bar or prejudice the Court from giving its own decision on the appeal that the Court considers just”.

In the instant case upon the discontinuance of the appeal by Joseph Obey the order of the Volta Regional House of Chiefs was that:

“This appeal is hereby struck out as having been discontinued with liberty to RE APPLY”

This order of the Court clearly means that the right to return to the house was left open. To proceed to institute an action in the nature of Judicial review in the High Court does not terminate or negate the jurisdiction exercised by the Volta Regional House of Chiefs. The application before my learned brother Baayeh in the High Court was for mandamus meaning the Applicant was seeking for an order to compel the Respondents the Volta Regional House of Chiefs to cause the Applicant's name to be entered in the Register of National Register of Chiefs.

In his ruling Baayeh J. stated that:

“In any case, as I have held elsewhere in this ruling with the striking out of the notice of appeal on 13/01/2009, there is no appeal pending and to satisfy the legal requirement for the grant of mandamus, applicants petition to the Minister dated 12/08/14 and copied to the Respondent is enough demand and Respondents having taken the view that the appeal cannot be heard for lack of Counsel is to tell Applicant that his request has been refused”.

I would not agree with my learned brother on the conclusions arrived at here. First there was no appeal before the house to be determined at the time of the mandamus application. There was only a right to appeal or a right or a right of interest to appeal and not an appeal as stated by S.M.K. Dzikunu in his address. See C. F. A. O. VRS. ZACCA supra.

Also not empaneling to hear an application does not amount to refusal to hear an appeal.

It is therefore my view that the right to appeal subsisted the order of mandamus and therefore the order of mandamus does not take away the jurisdiction of the Volta Regional House of Chiefs to entertain an application in this matter. Accordingly, application for certiorari and prohibition are refused.